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Saturday, August 25, 2007

Hickman: TYC General Counsel should have prevented wrongful incarceration of TYC youth

Problems at the Texas Youth Commission, without question, have plummeted to depths beyond my own ability to adequately analyze many important details, so I've asked some folks to guest blog on Grits periodically over the next few weeks to gain additional perspective on this troubled agency and efforts to reform it.

To kick off this series, former Texas Youth Commission contracts attorney Howard Hickman, who left the agency this summer, explains the backstory of what should have happened to 150 TYC youth who are presently wrongfully incarcerated, and wonders why administrators charged with reforming the system have allowed this unnecessary SNAFU to happen. Thanks, Howard, for contributing these important points to the discussion over TYC:

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It is perhaps the greatest irony that Texas' most liberal newspaper, the American Statesman, is editorializing that even though TYC has no jurisdiction it should continue to incarcerate 150 nineteen and twenty year old sentenced offenders in order to preserve the "public safety." I have been somewhat bemused by the reaction to the on again off again release of the sentenced offenders and who is to blame for the problem - TYC or the legislature. Regardless of the merits of SB 103 whether good or bad (I might add I have seen more bad than good come out of the legislature during my lifetime.) there was a time TYC could have complied with SB103's mandate on sentenced offenders without resorting to what is, in my opinion, the illegal incarceration of youth over whom TYC has no legal jurisdiction.

One only need know four things: (1) the content of the sentenced offender change was set in stone by the middle of April; (2) TYC has the power to ask a court for early release to parole of sentenced offenders at any time; (3) TYC can ask for the transfer of a sentenced offender to the Institutional Division of TDCJ at any time, and (4) courts have the power to expedite their dockets to schedule hearings on short order.

With this knowledge what should have been done? Beginning in April, the files of the sentenced offenders should have been reviewed to determine which would be affected by the age change to 19 from 21. The courts could then have been advised in writing of the potential problem with each youth that court had adjudicated and given the option of allowing the release to parole of that youth by operation of law or having TYC request a transfer hearing or early release hearing. If the courts requested that TYC request a hearing, then the courts could hold a hearing between the time SB 103 was passed(5/25/07) and the time SB 103 was signed (6/8/07). I might add that the governor could even been asked to delay the signing until the last possible day (6/17/07) if more time was needed for the courts to act.

Why did this legal method not happen? I have no explanation other than the incompetence or inemptitude of TYC's General Counsel. In April I told TYC's Acting General Counsel, Kathryn Knight, that TYC's experienced attorneys needed to meet and discuss the problems presented by SB 103 and its implementation. She told me that that was something that should wait for the new General Counsel. I later told the new General Counsel, Steve Foster, the same thing. He told me he would schedule a meeting. He did not do that until even more TYC attorneys told him the same thing. He subsequently scheduled several meetings, all of which he canceled at the last minute since he was never present in the Central Office at the time that he designated for each meeting. And thus no meeting was ever held.

For the want of sound legal judgment, 150 youth are inappropriately incarcerated. Some legal foresight could have easily prevented TYC's reform administrators from enduring much unneeded bad press and animosity from judges, prosecutors, and legislators. The American Statesman has called for legislative hearings. The first question those hearings should ask is "Why did the TYC reform administrators allow this problem to happen?"

52 comments:

These new administrators are tripping over their own feet. We all know they given their jobs, rather than actualy having to earn them, like the rest of the rank-and-file.

Assuming, arguendo, that they were indeed accomplished in their prior careers, their credibility was washed away upon setting foot in their newly-commandeered offices.

They owe their opportunities to the misfortunes of others. They are looting resources (salary, career advancement) that belong to TYC, and not to Owens-Pope personally.

Though I am sorry to see that their ineptitude damages real lives, I do feel a twinge of satisfaction knowing that they must now eat humble pie. These foibles can no longer be attributed to the prior administration. It's their baby, now. Own it!

Here's a lesson to the new admininstration: When co-ordinating a hostile takeover, you should keep some of the old guard on the payroll. It's better to appease these long-time employees with raises rather than see them leave the agency and become vocal critics.

The baby can't be owned because it was thrown out with the bath water. The new leadership couldn't have done it without the backing of the lege and gov goodhair. It's equivalent to the fleecing of Texas while people in positions to stop it, look the other way. They have watched their appointees fill positions with "cronies" and not qualifed juvenile corrections experts. They rid the agency of anyone with that kind of expertise. Not all of them were part of the previous corrupt leadership and some I'm sure were standing up for what they believed and had integrity, ethics and juvenile corrections knowledge, but they out numbered (as previously stated in another blog) by the current leadership. We are facing the most embarassing leadership in the history of our agency and it was our agency before it was theirs.

We can only blame the elected officials and the governor. We are being used a political pawn in game in which in which the youth are the victims. There are no rehabilitative, education, or treatment services in place. There has been plenty of time, but you can't implement programs you know nothing about.

New employees cannot come on board because we still don't have any training modules in place and they still don't know what kind of training will constitute 300 hours.

I strongly believe that all those former employees that have facts or can shed the problem with this new leadership should step up to the plate and testify at the hearing. The little people in trenches, like me, don't have first hand knowledge of the goings one, but can clearly see we are in a state of pure frustration and a crititcal crisis. Even our youth know that.

Howard I don't know you personally but I commend you for having the integrity and fortitude to bring the wrongful incarceration of youth to the attention of blog readers and the lege, whom we hope reads the blog.

I personally feel frustrated that I cannot be of more help. I listen to my coworkers and try to keep their morale up, but the medicine I give them is hard swallow. It's call Owens-Da Pope, it's a little bitter and sugar won't help make it taste or go down better.

Inspite of this, we are holding our facility up. We are doing the right thing as best we can. Our tenured employess are the backbone of our facility and have been for years. I'm sure the same thing applies at all other facilities. Without them we would be sunk. We are the ones teaching integrity, ethics, responsiblity, pride in our facility and pride in the work we do and Honesty. Lord help us if we become like the Austin leadership that tries to insult our intelligence on a daily basis.

Being a little person in the trenches, I can only hope that our lege has been listening and pray that gov goodhair is not re-elected.

This iaaue can be more damaging to the Youth who are incarcerated in TYC than Brookins and Hernandez ever were.

Getting rid of the good with the bad for no reason was inexcuseable. Replacing the experts with Know-Nothings has only created a bigger mess.

I recently met with an "expert" who has no experience with behaviorally challenged youth, much less an incarcerated population. And this "expert" was on Dr. Novy's treatment plan committee. (Good choice Forrest)

This symptom is the norm rather than the exception.

It is little wonder that the lack of leadership (exhibited by da pope's dictatorial style) is creating more problems than solutions.

If Gov Goodhair doesn't step in, and make changes, soon, he should step out of office and the lives of Texans -- forever.

Not all of the experts have left TYC. Occasionally they are asked to contribute. Please don't continue with the genralizing that there are no good people working on the problems. Granted,they are working with severe restrictions, but they continue to press onward, both in CO and the trenches. My thanks to those who persevere.

It sounds like we hit a raw nerve with the 11:43 commentor. Working with severe restrictions, it's more like working with complete incompetents. If you are so go hung on these people, you must be one of them. Name one good person left? If there are, it's those in rank & file positions, the leadership has none.

Is this not grounds for a potential lawsuit for wrongful imprisonment?

Did Kimbrough, or any legislators' office staff, meet or have contact with the TYC attorneys?

How could a problem this obvious have escaped anyone's attention? It seems inconceivable to me that anyone would think you could just decree "no more 19-21 year olds" without considering where they would go. I mean, the bill came out of a criminal justice subcommittee that's supposed to be well versed in precisely these types of problems, right?

My understanding is TYC talked to lege staffers about having the bill not apply to sentenced offenders who had already been committed but whose minimum period of confinement was after their 19th birthday.

Howard seems to be saying TYC could have followed the mandate of the bill, good or bad, had they only done a little planning, and had their General Counsel been more competent. He is not even a TDCJ crony, he's a Kimbrough crony, so he should be fired immediately.

The Lege only talked to the TDCJ people who had severe limitations on what they knew and what the problems were. The TDCJ people did not talk to the TYC people who knew what the SB 103 problems were. There was no comprehensive discussion within TYC by knowledgeable people of SB 103. I have not heard of such a discussion having taken place since I left TYC either.

12:55,You do not know about what you are rambling. Allegedly there was some conversations about the sentenced offenders after the conference committee reports were issued, which is about like changing your mind on suicide after you have pulled the trigger. Those conversations related to legislative intent on how to enact SB 103, which obviously were of little value in implementation.

There are legal limitations on what TYC staff can do with legislation. They can not lobby, only respond to requests for information.

If you had read my statements, you will note that I did not directly comment on if SB 103 was good or bad. The point that I was making is that government lawyers are supposed to advise on what the law does and what can be legally done, not on what the law should be. Regardless of what I believe, I, as an attorney, have a sworn duty to follow the law, not violate it because I may not like what it does. I left TYC so I could comment and try to get corrections made without violating the legal prohibitions placed on me as an employee of TYC.

I am surprised that no one has not already filed suit on various issues related to the improper incarcerations. The youth are limited in pursuing these matters due to their lack of money. It makes one wonder where the ACLU and various inmate rights groups are.

Wow. Howard, do you have evidence proving TYC attorneys were raising the flag on the issue to the new administration prior to the passage of SB103? E-mails?

I think the whole world needs to understand this fiasco was created by the reform administrators and not by current or former TYC employees, and Howard’s article certainly paints that picture. Who is to blame? I think both the ledge and the reform administrators should both accept responsibility, but we all know the ledge would never acknowledge their mistakes. Now the reform administrators are probably about to experience what our former administration faced earlier this year, the brunt of the blame. If anyone thinks Whitmire, Chuey, or Madden will accept responsibility, then I say you're nuts. I think these new folks ought to be a little nervous right now because they're about to have their asses handed to them next week. Stay tuned.

Howard, Thank you. In your previous comments, I thought you were criticizing Marie and the folks in the institutions who have been struggling with what do do with these 19 year olds. Now, I see where the real problems are laid. I am so angry that Whitmire demanded the dismissal of all those good, and dedicated people who knew what they were doing, like Neil, Emily, Linda, Pat, Don and Marie, etc. The real culprits are Whitmire, the Gov, and that sickening shill for them, Kimbrough. I am ashamed that he is a Marine! Old Salty

3:59, Which group will be bringing the suit and when? What will the goal of the suit be? Is there an opportunity for additional plaintiffs to be added? Who should should we contact among the advocates if we know of a youth that is caught up in this mess? Please let us know.

If the procedures I stated had been followed, the problems with TDCJ parole and court jurisdiction would not have existed. You are complaining about the result of inept planning. It is always hard to fix something when a massive mistake has been made. My point is that TYC did not have to reach the current mess.

Howard is right this mess did not have to occur. The legislators were notified of the potential problems. An amendment was submitted to correct the problem but Hinajosa refused to take any amendments to the bill. Even after the law was signed, a plan was submitted and had it been followed the mess would have at least been smaller. Now the legislators want to focus on intent not the law which is illegal. The AGs office cannot come up with one answer. Even TJPC could not decide whether the courts had jurisdiction or not. And current administration is unwilling to take a stance and sign their name to anything. So now there is this big mess.

12:46, when you say you can't name any more good people left in TYC, I assume you are including yourself? Other than Stan (to which I can agree with you there), I can think of several people still in the mix who are just laying low and making the painful adjustment. It kinda seems like your selling your colleagues out by making that statement. Only way we'll make it is by hanging tight with each other.

12:46 How can you say that Stan D is one of the good experts? He approved and signed the memo that went out on the use of pepper spray. He is well aware of Morales vs. Turman. He also has a rather checkered history in the agency.

Wow, does he not have the integrity to stand up to the leadership? It's disappointing he signed something in direct violation of Morales vs Turman. Is there anyone left we can have some respect for? Someone who actually cares for the youth and employees of this agency? What a sellout!

Howard: tangential thought (I sometimes wonder if I have any others); did SB 103 or just policy change give parents a right to see the files of students? If so, does this take away the right of an 18 year old to keep his file confidential?rdyhcz

Talk about sellouts! Once again, you guys/girls turning on each other only feeds in to what your occupying force wants. More reason to bring in MORE TDCJ folks who obviously aren't turning on themselves. Wake up man! You guys are playing right in their hands - again. Focus your energy on those that are insulting you, not those that are resisting this occupation! Jeeze, wake up TYC! And for Gods sake, be a good Jew during this Holocaust and survive yourself! Hang in there; we're pulling for you guys @ TJPC ;)

3:01 Ouch! how can you say that about TYC staff? Haven't we always supported those with integrity and skill among us? Okay, maybe as much as Ms. Piggy has empathy.Can't speak for Stan or his motivation; personal contact has always been based on trust and I have too much hope in him now to void that trust. He remains one of the few who have been there and done that in juvenile corrections. I was told the reason for the spray was to stop laying hands on kids (due to staff and student injuries I presume). But, if we lose Stan, we may welllose the last of the ones who, in fact, are experts in juvenile corrections.

Face it: Anyone a B9 or above in CO who "stood up" against the occupying forces were forced out, which means that those left behind are either afraid to speak out, or they agree with what's going and are brown-nosing sell outs.

7:46 and 8:02Don't be so defensive; I meant no disrespect.I have left the fraud TYC has morphed into. While still there I didn't speak out publicly; I was afraid of losing my income so I just bided my time & kept my family fed until I found another job. I'd send ole Ed or D'Pope an e-mail but why would they care what I think now when they cared less when I worked for them?

If you guys chose to hang on then bless you but personally I believe it's gonna get even worse before it gets better (if it does get better). I predict the public hearing this week will be a fraud, too. The big two and their "Yes" men & women will say what the committee wants to hear and the committee will accept it as fact. Care for younger kids will be contracted out, and only serious felons will be incarcerated. And the current thinking is that those "kids" don't need rehab, they just need to be held until time to go to TDCJ. Population reductions will result in facility closures and many lost jobs. TYC as we knew it is coming to an end. The writing is on the wall and it's only a matter of time.

Howard: one of the reported changes was that students and parents would have access to their master files. As you may recall, due to federal laws restricting information about drug use history, we had to get a release from student before such information could be passed on to parents. Additionally, same true for ALL information if student had turned 18. (for those persons who think this is foolish, the intent was to encourage teenagers with problems to seek help that they might avoid if they knew their parents would find out. Perhaps less needed in TYC than in the community, but information still restricted). Howard, if you don't remember it SB 103, I can be pretty sure its not there. If not, it again suggests that TDCJjr fails to check before making sweeping changes.

Calling us "brown-nosing sell outs," and then following up with a "no disrespect" comment?

You know, many of us had nothing, I mean not a damn thing to do with that perversion which led to all this mess. Many of us have been looking for other opportunities in the area, but no one wants to touch us because we have this TYC tag put on us given the irresponsible inactions of a few former key administrators who simply dismissed the Brookins/Hernandez situation as child play.

I appreciate Mr. Hickman's participation in this arena. I too have commented how unusual it is for the Statesman to be calling for the unlawful incarceration of these youth. I am a little dismayed at how much responsiblity he is deflecting from the legislature regarding this situation and worried that your reasoning will serve to deflect accountability from legislators in upcoming elections.

Basically Mr. Hickman outlined a two week time period where 150 youth were supposed to be returned to court and have their situations handled. To think anything can happen that quickly, concerning that many youth, in any government agency is a bit unrealistic. The legislators who wrote and championed this bill certainly should have thought it through to avoid anything like this. Youth could have easily been grandfathered and managed through administrative directives, or had some type of legislated staggered timeline.

While the new administrators are certainly clueless about their new positions, the legislators share no such claim to not knowing what they are doing. I really cannot believe that the special committee did not foresee this and do something about it. amazing.

Certainly the new administrators are to blame for not identifying the most dangerous of these youth(who facility staff could have easily identified and subsequently dealt with) and referring thm back to court for transfer to prison. At least the number would have been smaller and would not have included those who are almost certain to reoffend within days to weeks of being released.

I am amazed that the lawsuit is still pending. This is poor work on the part of the ACLU.

As a TYC employee, I do have to agree with others assessments of the counterproductive effect of the backstabbing and divisiveness of current employees towards each other on this blog. Please stop. And you don't know anything about me so don't tell me I am this or that or the other. Just think about what you are doing and maybe direct your efforts to more productive activities. This blog certainly is helpful to employees as a place to vent, but the venting has gone on now for months and when it includes bashing each other it is inappropriate.

For those who think the "serious felons" are the ones who cause problems and are bound for TDCJ,you are wrong. The violent offenders, and especially those who receive intensive treatment are the least likely to recidivate seriously or violently.

They used to have some interesting research posted on the TYC website but it has been archived and is extrememly difficulty to find. Very strange that this type of information would be buried.

You must not have much experience in the courthouse; I have responded many times in my legal career to motions on three days notice. If you had read what I said we are really talking about a two month period April to June, which based on my 29 years of legal experience is not unrealistic and very doable. All it would have taken is some forethought and planning.

As to there being better ways if the legislature had done something other than what they did, I totally agree there are a vast number of better ways but that was not the option and it ignores my basic premise that given SB 103 as it exists, there was a method to comply with SB 103 without inappropriately incarcerating 150 youth.

9:52,Can you point us toward some of that research? I know that TYC's Capital Offenders program was supposed to have some of the lowest recidivism rates in the the agency, but if there's more research about the recidivism rates of "serious offenders" I would love to see it.

This is in response to 8/25/07 9:53 comments.Turning it over to a few Ole Guards is a good idea BUT Keeping KNOW NOTHING Forrest Novy was a big mistake. Again he is no good for Special Education. All he knows is what he has read in a book while going to school all his life to get that Doctric Degree. No extended hands on field experince. He was an old friend of Dr. Nance and she brought him over with her when she took over Education for TYC. (to join the good old boy club) CO forced her to quit or be fired and they need to cut the rest of the cancer out and get rid of Novy. You should have been setting in on the Education video conference last week. Which he should not of been there since he is now a treatment expert) Believe me that guy is dumber than a fence post . He is NOT an expert in the Special Education field either. Anyhow 9:53 I agree that Co should have kept some of the old heads BUT NOT those sorry Son*&%*&$ that help bring us down. And Listen, there are still alot of those sorry ones in high positions in the field as we speak.

Mr. Hickman, I read what you said, "If the courts requested that TYC request a hearing, then the courts could hold a hearing between the time SB 103 was passed(5/25/07) and the time SB 103 was signed (6/8/07)."

This is clearly a two week timeline. Surely a "little thought and foreplanning" would have accomplished this task and the adminstrators are fools for not heeding the advice of those experienced staff (mainly you) telling them what was happening in Aprial and early May.

I am curious if preparing for one case on a three day timeline is the same as 150. I am also curious if these remaining 150 are as clear cut as those cases you had previously prepared for. It seems the considerations for many of these youth are difficult due to the artificial timelines imposed by SB103.

I do understand the purpose of your article to address the management of what was mandated by SB103. I just don't want people to forget that "a little planning and forethought" on the part of the legislature would have made none of this even necessary. All of the current changes could have been accomplished with administrative directives which would have allowed TYC some flexibility in the management of 18 year old youth who seemed to be making progress in treatment but now will be moved to prison, an inept adult parole system, or no parole system at all.

You apparently have never practiced law. There would in all probability be substantially less than 150 hearings. Judges would have an incentive to hear what cases they would want to review, and they could easily do that witnin the period of May 25 to June 17 or earlier if they so desired. With a little planning, there is nothing in what I proposed that would be hard to do within the time parameters. Last time I looked there were 4000 TYC employees and I am sure a few could be assigned to handle the review. After all, there was that special review panel Kimbrough appointed who managed to review thousands of cases in a week.

I believe that you think this task is much more complicated than it really is. Give me a call. I am in the book. I would be happy to explain things in much more detail, and you can explain to me why you are so obsessed that what I proposed is impossible. It is not.

I am not saying impossible, just unrealistic. But I will defer to your expertise and reiterate that the legislature and governor may have unnecessarily put the community at risk if all these youth have to be paroled due to jurisdictional issues. All of these changes could have been handled with better planning and forethought on the part of the legislature.

Sounds like now they are saying TYC continues to have authority over these youth because they were committed prior to SB103 but they are going to move out as many as they can to try to appease the legislative powers that be.

I have been out of town for a few days. You belief on my position being unrealistic is itself based on ignorance. Believe me, I am not unrealistic.

As to the legislature or the current TYC administration saying they did not mean what the law says or did not intend the consequence does not affect the letter of the law which continues to be violated. It is like the murderer trying to justify the murder of his parents because he is now an orphan. It is pure bovine excrement.

I wonder why no attorney has fought for these youth? There are determinate sentence youth under TYC supervision, who are over 19, who have completed the program, and who have completed their minimum period of confinement yet they have not been transferred to TDCJ Parole. Which means they are being illegally confined in a TYC institution. And how can TYC decide that the new law does not apply to them and that they can hold them until they are 21? I didn't read that in SB 103 or the Human Resources Code. I suppose holding them benefits some youth which makes it OK to violate the law????

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